BHAGABAN PANDA Vs. BAIRAGI NAIK

JUDGEMENT

(1.) THE villagers of Jaypur Sashan, Shyamsundarpur, Sayadnagar, Khakarwal, panisimulia, Govindpur and some other villages have brought the suit under Order 1, Rule 8 C. P. C. against the villagers of Srirampur, Mirjapur, Krushnadaspur, chakradhanpur and some other villages under Order 1, Rule 8 C. P. C. Plaintiffs asked for a declaration that they are entitled to use the entire volume of water of river Sriram for the purpose of irrigating their lands and for a permanent injunction restraining the defendants from diverting the course of the river into a new channel excavated by the defendants. The map (Ex. 7) has been made a part of the decree. The facts stated here are with reference to Ex. 7. Defendants had brought title suit No. 340 of 1940 in the Court of the Munsif, Balasore, for a declaration that the present plaintiffs had no right to put dams in the bed of river sriram at points A, B and C. The defendants lost the suit, and true appeal No. 306 of 1941 filed by them was dismissed by the Subordinate Judge, Cuttack. As a result of the decision in the previous litigation inter partes, flow of water beyond the point A in river Sriram was completely checked and the entire water was diverted to river Jaypur which abuts the lands of the plaintiffs. The plaintiffs aver that the defendants have constructed a channel shown red in the map which starts at a point higher than A, and runs through plot Nos. 273, 274, 275, 299 and 280 and connects river Sriram in plot No. 280 at a point below C. by construction of such a channel, the water of river Sriram is diverted from an upper limit and is made to fall at a lower limit below point C and thereby the previous decree is nullified. The volume of water at point A is diminished When the channel was constructed the plaintiffs had the apprehension that the diversion of water through it would result in substantial diminution in the supply of water in river Sriram at point A which would affect the irrigation, rights acquired by the plaintiffs.

(2.) THE defendants contended that they were upper riparian owners. They purchased a length of land ten links wide from out of c. s. plot Nos. 273, 274, 275, 299 and 280. The disputed canal was not dug by them in 1955. It is a natural water channel which exists for more than 20 years before the suit and only at times the neighbouring, tenants dig out silt deposition on its bed. The water from river Sriram passes into the channel and irrigates their lands. This right of the defendants, as riparian owners is not affected in any manner by the previous decree. The plaintiffs' prayers for a declaration and for injunction are not maintainable in law.

(3.) THE learned trial Court recorded We following findings: (i) River Jaypur gets all the water of river Sriram at point A and the water does not flow beyond point A in river Sriram. (ii) The disputed canal marked red in Ex. 7 is not a natural channel but is an artificial one excavated by the defendants for the first time in 1955. (iii) If the channel is allowed to continue, the entire volume of water of river Sriram, as it used to pass to river Jaypur at point A would diminish and the plaintiffs are likely to face serious disaster at the time of drought. (iv) Plaintiffs have acquired right of easement in respect of the entire volume of water flowing into river Sriram at point A which passed to river Jaypur. (v) The natural rights of the Upper riparian owners an either bank of river Sriram belonging to the defendant's villagers would remain in suspension until the plaintiffs abandon their prescriptive rights. On the aforesaid findings, the learned trial court decreed the plaintiffs' suit. It declared that the plaintiffs have got right of easement of user of the entire volume of water flowing into river Sriram which is diverted to river Jaypur at point A for the purpose of irrigating their lands. It also passed an order of injunction directing the defendants' to close the mouth of the channel marked in red in Ex. 7 at the point at which it starts from the river.